Article excerpt

Following are 10th Circuit and local opinions filed recently.
Oklahoma Supreme Court

For the week ending March 17, 1998
Sun Ridge Investors, Ltd. d/b/a Sun Ridge Apts. vs. Richard
Parker, et al., No. 86,074.
Landlord's per diem late charge was not enforceable because it
violated 15 O.S. 1991, section 213, was usurious, and was an
unenforceable penalty prohibited by North American Investment Co.
vs.
Lawson, 854 P.2d 384. Per diem charges are allowable as liquidated
damages, but not as penalty for breach of lease.
Robert M. Hoover, Jr. vs. Kiowa Tribe of Oklahoma, No. 87,139.
Economic activity within state by federally recognized Indian
tribe residing within state is subject to suit in state court on
same
terms as any other person. Tribe's contention that it retains
sovereign immunity when it ventures anywhere in state and enters
into
contractual relationship is inconsistent with Oklahoma's historical
relationship with Indian tribes located in Oklahoma. Accordingly, no
injustice has been done by court's decision in Hoover vs. Kiowa
Tribe of Okla., 909 P.2d 59.
Dissent states that this case revolves around issue of waiver of
sovereign immunity. Tribe did not clearly waive its sovereign
immunity. Oklahoma has not met congressionally imposed conditions
necessary to assume civil and criminal jurisdiction over Indian
tribes and nations. Evidence does not support finding that Indian
sovereignty in Oklahoma has been "diminished."
Dissent states that court continues to misperceive status of
tribal sovereign immunity in Oklahoma. Even if majority is correct,
court should use restraint and defer its decision until U.S. Supreme
Court has spoken. The very issue, with the very same tribe, is
presently before that court.
Mary Ellen Hulett vs. First Nat'l Bank and Trust Co. in Clinton,
et al., No. 87,868.
Oklahoma slayer statute, 84 O.S. Supp. 1994, section 231, which
prevents persons convicted of murdering victim to inherit from
victim, provides only that any benefit that would accrue to slayer
upon death of his victim shall be distributed to other heirs of
victim by laws of descent and distribution. It does not apply to
murderer's conditional trust share because no part of it accrued to
him upon victim's death. Also, summary judgment in favor of appellee
was error. If appellant is, in fact, murderer's son (and victim's
grandson), he is entitled to share in estate of victim as heir under
will.
Oklahoma Court of Civil Appeals
For the week ending March 17, 1998
Oklahoma Sports Properties, Inc. vs. Indep. School Dist. #11 of
Tulsa Cty., No. 88,408.
Oklahoma independent school districts have implied power to charge
and collect broadcast rights fees as incidental to powers expressly
granted by statute.
L. Nan Lockhart vs. Teachers' Retirement Sys. of Oklahoma, No.
89,122.
In earlier proceeding, Board of Trustees of Oklahoma Teachers'
Retirement System (OTRS) found that doctrine of equitable estoppel
did not prevent it from decreasing number of years of teaching
experience for which appellant could receive credit for her
retirement. Appellant failed to assert compelling public policy as
basis for imposing estoppel on OTRS which would outweigh its duty to
administer the OTRS to all members based on existing rules and
regulations. District court's order, which affirmed board's finding,
was supported by law.
Hotels, Inc. d/b/a Howard Johnson - Remington Park Lodge vs.
Kampar Corp., et al., No. 89,400.
Trial court abused its discretion in denying Kampar's plea to
vacate default judgment previously entered against it as sanction
for
discovery misconduct. Trial court failed to consider Kampar's
culpability and efficacy of lesser sanctions. Also, Kampar's
misconduct did not seriously interfere with judicial process.
Paula B. Robbins vs. Herman C. Robbins, Jr., No. 90,031.
Trial court did not err in deferring jurisdiction to California to
determine child custody case. Trial judge's consultation with
commissioner/judge in California did not involve forbidden ex parte
communications. …